Ibero-American Action League, Inc.

800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ibero-American Action League, Inc. and Internation- al Union of Electronic, Electrical, Salaried, Ma- chine and Furniture Workers, AFL-CIO. Case 3-CA-14259 June 8, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On December 15, 1988, Administrative Law Judge Wallace H. Nations issued the attached deci- sion. The General Counsel filed an exception and a supporting brief limited solely to the judge's rec- ommended Order reinstating the withdrawn peti- tion in Case 3-RC-9195. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exception and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.I ORDER The recommended Order of the administrative law judge is adopted subject to deletion of para- graph 2, and the complaint is dismissed. I We agree with the General Counsel that the judge improperly direct- ed the Regional Director, on request by the Union, to reinstate the with- drawn representation petition filed in Case 3-RC-9195 and have modified the recommended Order accordingly Doren Goldstone and Michael Israel, Esqs., for the Gener- al Counsel. Thomas A. Fink, Esq., of Rochester, New York, for the Respondent. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. Based on a charge filed on March 15, 1988, by Interna- tional Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, AFL-CIO (the Union), the Re- gional Director for Region 3 issued a complaint and notice of hearing alleging that Ibero-American League, Inc. (Respondent or Ibero) violated Section 8(a)(5) of the National Labor Relations Act (the Act) by withdrawing recognition from the Union after a majority of Respond- ent's employees had selected the Union as their exclusive collective-bargaining representative and after the Re- spondent had voluntarily agreed to recognize the Union. Hearing was held in these matters in Rochester, New York, on August 2 through 4, 1988. Briefs were subse- quently received from all parties. Based on the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a New York not-for-profit corporation with an office and place of business in Rochester, New York, where at all times material to this proceeding it has been engaged in the provision of social services to the Hispanic community in the Rochester area. Respond- ent admits the jurisdictional allegations of the complaint and I find that the Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED It is admitted and I find that the Union is now and has been at all times material to this proceeding a labor orga- nization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Statement of Issues and Position The position of the General Counsel simply stated is that Respondent violated the Act by withdrawing recog- nition from the Union after having voluntarily extending recognition through the actions of one of its directors at a time when the Union had an apparent card majority among an appropriate unit of Respondent 's employees. The Respondent contends that its withdrawal of rec- ognition did not violate the Act because the purported recognition was without real or apparent authority and that the Union, when it withdrew its representational pe- tition from the NLRB, 1 was aware that the authorization letter it had obtained was not authorized by Respond- ent's board of directors and had not at that time acted to its detriment in reliance on the authorization letter. B. Facts Giving Rise to this Dispute Respondent is a New York State not-for-profit corpo- ration formed in 1968 to provide social services to the Hispanic community in Rochester, New York. Ibero conducts its business pursuant to the provisions of the New York Not-For-Profit Corporation Law and the Ibero bylaws. Ibero is managed by its board of directors. In 1988 there were 16 members of the board. The chief executive officer of Ibero is the executive director. The president of Ibero has the responsibility to preside at meetings of the board and to act as a spokesperson at public meetings and to sign contracts when authorized by the board. Commencing in the mideighties, Ibero entered a period of turmoil. In 1984, Daisy Alomar-Hamza led an organization formed to bring some order to Ibero and to I To aid in understanding, the National Labor Relations Board will be referred to as NLRB and Respondent's board of directors will be re- ferred to as the board 294 NLRB No. 65 IBERO-AMERICAN ACTION LEAGUE help the organization which was running a substantial deficit. She was elected to the board of Ibero in 1987. As a result of a community election of board members, oc- curring in September 1987, Alomar-Hamza was elected president of the board The executive director, Mario Caceres, was terminated by the board in December 1987 A former executive director, Domingo Garcia, was asked if he would be a candidate for executive director and, on January 25, 1988, was interviewed for the posi- tion. After the interview, Garcia was hired and informed the board that he would be able to start on February 1, 1988. In 1984, the Union sent a letter to Ibero requesting recognition. Ibero did not respond and the Union filed a petition with the NLRB requesting an election. As a result of discussions between the NLRB agent and the representative of the Union, James Young, and the repre- sentative of Ibero, Thomas Fink, Esq, a stipulation was reached in which the employees eligible to vote were agreed on and the date and time of the election were stipulated. The election was held and the Union won Ibero had not conducted a campaign against the Union and had allowed the Union's representative to address the employees at Ibero's office. Ibero had an attorney present who explained the procedures to the employees There were no unfair labor practice charges filed with respect to this election Bargaining negotiations were thereafter conducted. Ibero was represented by an attorney (other than Fink), several administrators, and an attorney board member. After protracted negotiations, which cost Ibero over $20,000, the parties reached an agreement The board of Ibero approved the tentative agreement; however, it was not ratified by the employees. There was no request of continued negotiations and the Union sent a letter, dated January 5, 1987, disclaiming any further interest in repre- senting Ibero's employees In approximately November 1987, the then executive director, Caceres, requested a managerial employee, Rudy Rivera, the third in command, to request that the Union return to be the representative of the employees. The Union requested, by letter dated November 2, 1987, ,that Ibero recognize the Union as the collective-bargain- ing representative of its employees. This communication, signed by Young as director of organizing, set forth that if Ibero did not recognize the Union, then the employees would have an election pursuant to a petition filed by the Union with the NLRB The petition was dated Novem- ber 2, 1987, and was sent to Ibero with a notice that there would be a hearing on December 16, 1987. The Union designated Executive Director Caceres as the em- ployer representative. Young testified that at this time the Union had authorization cards signed by 30 of Ibero's employees. On November 9, 1987, the Union charged Ibero, Ca- ceres, and Alomar-Hamza, with having committed an unfair labor practice by threatening to discharge Rudy Rivera for his support for unionization. The charge was investigated and, as a result, the Union withdrew its peti- tion on the grounds that it understood that the NLRB in- vestigation showed that the petition was tainted by the involvement of managerial employees. Ibero was repre- 801 sented at this time by Attorney Fink. The order approv- ing the request for withdrawal was agreed to by the Re- gional Director on December 16, 1987. After the withdrawal order, the Union had representa- tives visit the homes of Ibero employees and some 23 of the potential 43 unit members signed new authorization cards. On January 14, 1988,2 Young filed another peti- tion with the NLRB, naming therein Daisy Alomar- Hamza as the Employer's representative. Although it is not clear when the Respondent received notification of the petition from the NLRB, Young received material from the Board relating to the petition on January 16. When Alomar-Hamza received the NLRB material, she did not turn it over to the Respondent's acting executive director, Luisa Baars, but instead called James Schmidt, a member of Ibero's board of directors whom she be- lieved had some experience in labor matters In her call to Schmidt, Alomar-Hamza asked him if would assist the agency by filling out the NLRB forms and Schmidt agreed, although he was busy in his job as the executive director of a farm labor legal program. A meeting of the board of directors was held on Janu- ary 21, 1988. The meeting was a regular meeting with a set agenda. Twelve members of the board were present. The executive secretary, Alicia Torres, was responsible for recording the session and then preparing the official minutes. The meeting started at 6:50 p in and, after a long meeting, Alomar-Hamza brought up the issue of the letter from the NLRB. A transcript of this portion of the meeting was prepared from the tape recording made by Torres and is as follows:3 Alomar-Hamza said. "We received a letter from the Union, National Labor Relations Board, is here, but we got another, electrical . . 11 Luisa Baars: "Electrical Workers." Daisy: "right." Jose Cruz (board member): "Again. I thought we dust got rid of them." Daisy: "Yes, but we just got one." Daisy. "And I spoke to Jim [Schmidt], since I under- stand he has experience on these issues, and if the Board agree, I would like to entertain a motion after I finish what I want to say. I thought that it would be a good idea to give these papers to Jim, and there are things to be filled out, to pass that to Jim, it would help for Luisa to give the information for Jim to fill it out. I know Jim is a very busy person and a traveler, that's why I want to be his personal secretary so that I could do all this traveling. James Schmidt: "If you know the places I go you wouldn't want to go, there are finer places." Someone: "That's a lot of corn." Daisy: "I thought that if we give this to the lawyer, presently, we are going .to start getting into . . . money, and right now we owed the lawyer fifteen hundred something dollars " 2 Unless noted, all dates hereinafter are in 1988 3 All material in quotation marks in this decision is intended to be an exact quote from either the transcript or an exhibit with no corrections of grammatical or spelling errors 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Luisa Baars: "$1,578.00 for the last bout with the Union." Daisy: "So I felt that we should give this to Jim and I spoke to Jim, Jim said that he will help us ag much as he could, and when he thinks it should go to the lawyer, then we go to the lawyer. But I felt by that time we would have save money to this Board. And my other opinion is that if the staff wants Union, we shouldn't fight it, because we shouldn't be contemplating spending $10, 15, 20 thousand to fight something that the staff want. If they want it, let them have it, because we don't have the money." Daisy: "Right now, the problem is that now if we fight it again is going to cost a bundle of money." [ Blank space.] "They want Union." Tina Pereda (board member): "That was expressed by just one member or . .. ?" Daisy: "No, no, it was, I think ... . Luisa: "At least 14 because it has to be signed by 30% of the members, possible members of the Unit. Tina Pereda: "Is it like a petition?" Jose Rivera: "They signed some cards." Luisa: "By at least 14 employees, and we have to post, tomorrow I will proceed and post whatever came from the National Labor Relations Board." Daisy: "And Luisa has the papers that have to be filled out; and I would Like to entertain a motion that we give this to Jim instead of going to the lawyer at the present time." Motion by Jose Rivera, seconded by Jose Cruz. Motion carried. As noted in the above transcript, there is a short blank space on the tape which Torres testified was present when she first heard the tape. There was no explanation for the blank space; however, Jose Cruz testified he re- called there was some discussion about an election. After the board meeting, toward the end of January, Schmidt received several calls from the NLRB agent, John Bernas. Schmidt testified that Bernas indicated that he had heard that Schmidt was the Ibero representative. Schmidt denied that he was the Ibero representative and stated that he was working with the chairperson. The first of these calls from Bernas took place between Janu- ary 25 and 26, 1988. Schmidt testified that he was in- formed that there was going to be a hearing the follow- ing Friday and the NLRB would have to receive the in- formation requested. Young also called Schmidt and in- formed him that he had been told that he was a contact person for Ibero. Schmidt indicated that he specifically informed Young that he was not the representative of Ibero. Schmidt testified that when asked by Young what he was going to be doing, he said he was not sure and that he would call him back.4 Schmidt put the package of papers from the NLRB in his Ibero file and did not look at them to determine what was required. Schmidt testified that during the week he believed ended on Friday, January 29, the NLRB agent told him * On p 22 of the transcript, Respondent made a motion to strike test,- mony relating to a conversation where Young testified that he was told by NLRB agent John Bernas that Ibero was going to recognize the Union. After further consideration, this motion is granted and the testi- mony stricken as hearsay that there would be a hearing on that Friday. Schmidt had the NLRB papers to be filled out and realized that he did not have enough time to do it. He then testified that he called Alomar-Hamza to tell her that the forms had to be completed by Friday. He told her that Ibero had two options, either to file the papers and get the documentation in or grant recognition to the Union. Schmidt testified that she said that "the Board doesn't want to fight the Union. She said "why don't we just give them recognition, what does that entail?" Schmidt testified that he told her, "we've got to give them a statement and as to how she wanted to handle that she said, would you handle that. I said, fine, I'll be glad to do it but I will need stationery from Ibero. And I then called Ibero and got the stationery sent to me." Schmidt indicated he told someone, unnamed, at Ibero why he was requesting the stationery. Schmidt testified that he then prepared a letter recog- nizing the Union, and on or about January 28, met with Young and Norbert Benson, an union International rep- resentative, at the Union's offices. According to Schmidt, the meeting did not take long. The three had a discussion about computers as the recognition letter was retyped on the Union's computer. Schmidt inquired about how the union business was going and about the weather. Schmidt did not recall whether the Union made any in- quiry as to his authority to act on behalf of Ibero with respect to recognition. On this point, Schmidt testified: "I don't recall. I don't think the issue came up. I may have talked with him about my conversation with the Chairwoman because he had called me prior to that asking what the status was because of the Friday NLRB meeting. And I said I would check with the Chairperson and get back to him. So I may have communicated that I talked to the Chairperson, Mrs. Alomar on this." With respect to this meeting, Young testified that Schmidt arrived, they had small talk, and Schmidt then told him that "there was a Board meeting and the Board decided not to spend the money to hire an attorney at this time. They had spent over $20,000 last time that the union attempted to get in there and that they didn't have the monies to spend this time. And they couldn't see fit to spend that kind of money and that he was designated to handle all the dealings with the Union. He then asked about the authorization cards." According to Young, Schmidt "asked me if I had the authorization cards and I told him, no, that they were at the NLRB but I did have copies of them. I told him I had copies in my office" "and then we started talking about the Executive Board meeting again because he said that the Board was aware that we had' an apparent ma- jonty and also said that after the Board meeting that the President of the organization also had given him the au- thority at that meeting after the board meeting to recog- nize the union." (Tr. 30.) On cross-examination, Young changed his testimony to say that Schmidt said that the executive board was aware of the Union's overwhelming majority. With respect to the title "Director" used by Schmidt on the recognition letter, Young testified that Schmidt IBERO-AMERICAN ACTION LEAGUE said he was going to use that title because the president had designated him to handle all the affairs of the Union. Norbert Benson testified that the meeting began with Schmidt apologizing for not meeting in the morning as planned Benson said Schmidt stated, "he came prepared to recognize the IUE as the union for the people over there as a result, of a meeting that the Ibero board had. And after talking with a woman named Daisy who was the President of Ibero, that she had agreed to him to give the recognition to recognize the IUE." Benson fur- ther testified, "Well, there was a bunch of small talk, talking about one of the reasons it was agreed was be- cause Daisy was talking about how they didn't want to go through that expense that they went through the last time. It cost over $20,000 and the Board knew that the overwhelming majority of the people wanted to have the IUE represent them and so they decided that this was the way they were going to go " "When it came to the letter, he wasn't sure how the unit was supposed to be and asked what the unit should be and Ed got a copy of the petition and he was jotting down some notes and that and used that, that's what was put in the recognition letter, what was on the petition for the bargaining unit and put together the language for the recognition out of a contract that we had there and printed it up." "When it came to putting down his name, he said to put it down as Director of Ibero and that kind of surprised me be- cause I knew that they didn't have a Director at that time, Mario Caceres had already been let go and I said, Director and he said well, the Board authorized me to act as the Director in the matter of the affairs of the union, what was going to happen with the union." Benson said Schmidt inquired about the authorization cards but did not ask to see them. Young told Schmidt that the Union had cards for 41 of the 43 unit members from the petition withdrawn in December, but did not tell him the number of cards it had submitted with the petition in question (23) Daisy Alomar-Hamza testified, and up to and through the board meeting of January 21, her testimony is con- sistent with evidence heretofore given. After that meet- ing, she testified that the organization was in a turmoil because it did not have an executive director. She went by its offices on a regular basis to check the mail and see to any problems which might have arisen. On January 29, during such a visit, she received a letter notifying her that she had to be in "federal court" on February 5. This letter, a notice of representation hearing from the NLRB, did set a hearing on February 5 and was ad- dressed to Alomar-Hamza as the Employer's representa- tive. On receipt of the notice, she called Schmidt and told him that she had received a letter for a court ap- pearance and did not know what to do with it. She testi- fied that Schmidt said he had taken care of it and the NLRB was not supposed to have sent the notice. At this point she attempted unsuccessfully to call At- torney Fink, and then spoke with Interim Director Baars. On Monday, February 1, while engaging in vari- ous ceremonial activities surrounding the installation of the new executive director, Garcia, she showed him the notice and he advised her to call Fink immediately. On the next day, Tuesday, she received a note from Fink to 803 the effect that if she wanted him to represent Ibero at the hearing on February 5, she must get the papers in his hands immediately. Alomar-Hamza went to Fink's office after noon that day and gave him the papers She testi- fied that he made some telephone calls and then asked her if she was aware that Ibero had recognized the Union. She testified that she was unfamiliar with what recognition meant and Fink explained. She then told him that Ibero had not done that and the board had not ap- proved it. After Alomar-Hamza left her attorney's office, she spoke with Director Garcia who asked how the Union had been recognized She said she did not know, but would like to speak with the interim director, Luisa Baarg. Alomar-Hamza said the Baars told her that Schmidt had called her asking to have his memory re- freshed as to the board's decision of January 21, and then asked that some stationery be sent to him. She passed this information on to Garcia, who called each board member to get their understanding of the board meeting of January 21. After receiving this information, Garcia and Alomar-Hamza called a special board meeting for February 10. Attorney Fink testified that after having lunch with Garcia on February 1, he returned to his office to find a message from Alomar-Hamza asking that he appear for her at a hearing on the Union set for February 5. He was unable to reach her and left a message at Ibero for her to get the papers to him. On the next day Alomar-Hamza came to his office with the notice and he then called the NLRB agent. He told the agent that he had just been no- tified of the hearing and asked for an adjournment. The agent indicated that he thought a Mr. Schmidt was in- volved in the matter for Ibero and that in any case, Fink should call the union representative, Ed Young. The agent told him nothing, but left the impression that Young would have some information for him. Fink then inquired of Alomar-Hamza who Schmidt was and she told him that he was a member of the board. He then called Young, who he had met when rep- resenting Ibero in 1985 Fink began telling Young that he would like an adjournment and that there should be no problem about the unit or the Excelsior list as they had come to an agreement with respect to the earlier elec- tion. At that point, Young indicated that it was not going to be necessary because Ibero had recognized the Union and that he had received a letter of recognition. Fink told Young he knew nothing about the recognition and would get back to him. Fink testified that in this conver- sation Garcia's name did not come up as he had not at that stage spoken to Garcia about recognition. Fink then spoke to Alomar-Hamza and in her presence called Garcia, who indicated no knowledge of the recog- nition matter. Fink advised him to look into it. On Feb- ruary 3, Garcia called Fink and told him there was in fact a recognition letter and said he would send it to Fink. Garcia called again that day and told Fink that he had listened to a tape of the January 21 board meeting and could not find that the letter or the recognition had been authorized and that Ibero's view was that there was supposed to have been an election. 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On February 3 in the late afternoon, or early in the morning of February 4, Fink again called Ed Young. Fink testified that he told Young that he had spoken to the new executive director about the letter of recogni- tion and that after a quick investigation, believed that the letter was not authorized by the board and that the board wanted to have an election. He further told Young that the board wanted to make it easy to have an elec- tion and that it might be the best thing to have an ad- journment of the February 5 hearing because Fink had suggested to Garcia that Ibero should have a board meeting to determine what had happened. Young indicated to Fink that he had the letter of rec- ognition and as far as he was concerned that was the end of the matter. Fink indicated that he would be prepared to go to the hearing and had all the information needed for the hearing. Fink testified that the end of the conver- sation was not friendly. Fink then called the NLRB agent and informed him that a mistake had been made and that the purported recognition was not authorized by Ibero's board. He asked for adjournment of the hear- ing so that the board could have time to consider what had happened. The agent said he would call Fink back and later did, telling ,Fink that there was going to be a letter withdrawing the petition for representation and based on that, the hearing was adjourned. He indicated that Fink would receive further notice. Between February 4 and 10, Fink received a call from the Union's attorney wherein the attorney indicated he was aware of a' problem and advised Fink that Ibero should follow through on the recognition or the Union would file an unfair labor practice charge. Fink told him that he was not sure what Ibero's board would do in ad- vance of the meeting on February 10, but that it was Fink's understanding that the board had never authorized recognition. After the February 10 board meeting, Fink prepared a letter to the Union stating Ibero's position that the recog- nition was never authorized and that it would agree to a swift election. On March 2, Fink received a letter from the Union which made him realize that the Union had not received his letter. After checking with Ibero, he sent a copy of Ibero's position letter to the Union by messenger. Executive Director Garcia testified that prior to his taking office on February 1, he had heard nothing about the union matter. On the February 1 or 2, he became aware of the notice setting a hearing for February 5. No one had mentioned it to him so he spoke with Alomar- Hamza. He advised her to get the papers to Fink. Later, Garcia received a call from Fink advising Garcia that the Union had been recognized. Garcia was shocked as no one had indicated to him that this had been done. Garcia could not find the recognition letter at Ibero and sent someone to Schmidt's office where a copy was ob- tained. He asked his secretary when the board had ap- proved the recognition and all she could remember was that the union matter had come up in the board meeting of January 21. He asked for and listened to the tape of the meeting. In his opinion there was nothing said at the meeting that would authorize recognition, so he decided to call the board members in attendance at the meeting to find their understanding of the board's action. He reached all but Schmidt, and each indicated that the board had not voted to recognize the Union. After these conversations and based on Fink's advice, Garcia decided to call a special board meeting. Prior to the meeting, Garcia spoke with Schmidt, who indicated that he did sign the recognition letter, and that he had done so on Alomar-Hamza's instructions. Garcia was surprised at this and called Alomar-Hamza who indicat- ed she had not given those instructions. Being newly ap- pointed and not wanting to get personally involved in an apparent conflict, Garcia called the special meeting where the matter could be clarified. Prior to the February 10 board meeting, Garcia held a staff meeting where a number of employees expressed dissatisfaction with the recognition being extended with- out the opportunity to vote on it. Garcia opened the meeting on February 10 by telling the board that it had a situation whereby it had recog- nized the Union and he wanted some clarification on it. His recollection of the meeting was that the board mem- bers stated that it was never the board's intention to rec- ognize the Union and that though they would not fight the union, they wanted the employees to have the oppor- tunity to vote on the matter. Garcia testified that Schmidt defended his actions at the meeting, saying first that he had given the letter be- cause he understood that was what the president wanted him to do. After some discussion, Schmidt agreed that he might have misunderstood the intention of the board and apologized for the misunderstanding. Though the board on February 10 had the option of ratifying Schmidt's ac- tions, it did not because it was never their intention of recognizing the Union without giving the employees the opportunity to vote. The pertinent portions of the minutes of the February 10 Ibero board of directors' meeting reads as follows: , The President explained that the reason for this special meeting was because there was misunder- standing at the last Board meeting regarding the ac- ceptance of the Union. She also said that at that meeting the Board agreed that because of the expenses in legal fees, the agency cannot afford to fight the Union and if the staff wants the Union they should have it. She was authorized to work with Jim Schmidt in filling out the required documents. Domingo Garcia, the Executive Director, said that he heard portion of the recording and that his interpretation is that if staff wants a Union, let them have it; and that there was going to be a voting process. Apparently the way that Daisy and Jim Schmidt understood it was that the Board wanted the Union to be recognized and the paper work that was filled out gave automatic recognition to the Union without the voting process. Mr. Garcia also explained that people from the staff have asked him how can they have a Union without having a chance to vote. With that in mind, he believes a clarification should be made to the Union about what the intention of the Board was. IBERO-AMERICAN ACTION LEAGUE He also stated that Mr. Tom Fink, the agency lawyer, could file the papers indicating the intention of the Board was to allow the staff to have a vote. Mr. Brown asked Mr. Garcia what he would like to do Mr Garcia said he will like to give a chance to the staff to vote. Jim Schmidt raised his concern about the fact that a resolution was approved by the Board to rec- ognize the Union and he is concerned about what the Union will say. Mr. Brown believes that the lawyer should handle this matter and will counsel the Board. Motion by Robert Brown, seconded by Jose Cruz that the Board clarifies their original position to indicate that what we agreed to do was to con- duct an election where we wished to place the deci- sion of the Union should be recognized on behalf of our employees and that to the extent that we should consult with legal counsel to determine to what extent that's possible given the facts that have al- ready occurred. Motion carried with one abstention (Schmidt). Garcia testified on cross-examination that he believed that either Schmidt or Alomar-Hamza was lying about the matter of whether Schmidt was specifically author- ized by Alomar-Hamza to recognize the Union and ducked the issue by stating at the meeting that they both had a misunderstanding of the board's intention as of January 21. With respect to this credibility determination, I credit the version given by Alomar-Hamza. This determination is based on my observation of the witnesses when testify- ing as well as other facts of record. In all fairness to Schmidt, a review of his testimony in this record clearly reveals that he has a very foggy memory with respect to the matters at issue. On many occasions he admitted he did not recall events or details. For example, when asked whether there had been a board meeting after January 21 to consider the union matter, he denied that such a meet- ing had ever taken place Only when shown the minutes of the February 10 meeting by the General Counsel did he have a recollection that he had actually participated in a full special meeting, called only to consider whether his actions should be ratified by the board or whether the board would renounce what he had done. Moreover, there was no explanation from Schmidt as to when or where he contacted Alomar-Hamza to receive the au- thorization he claims. The record supports Respondent's contention that Alomar-Hamza is a very difficult person to reach by phone and Schmidt gave no details of his call to support his contention that it in fact occurred. I also consider it significant that Schmidt did not send a copy of the recognition letter to Alomar-Hamza or any one else at Ibero. Certainly if as he contends he was acting as her agent under specific instructions, he would have done so. In the same vein, Schmidt did not testify that he even called Alomar Hamza after the purported recognition; only Alomar-Hamza's call to him produced the first inkling that he had taken action. I also consider it to be out of character for Alomar- Hamza to quickly and almost absentmindedly give 805 Schmidt authority to recognize the Union over the phone. Her actions with respect to the Ibero matters show that she consults the board before taking any seri- ous actions For example, she felt it necessary to get a formal board resolution just to have Schmidt fill out forms. I find it inconceivable that having done that, she would have bypassed the board and knowingly and in- tentionally orally authorized Schmidt to recognize the Union. Also, her subsequent statements to Attorney Fink and her reactions as described by him clearly show that she did not comprehend that anything had occurred which would cause the election to be eliminated. I find Attorney Fink to be completely credible and his testimo- ny will be credited at any point where it conflicts with the testimony of any other witness. He appears to be a person of substantial stature and honor, and has no per- sonal stake in the outcome of this proceeding. Another matter that may require a credibility resolu- tion is when the Union became aware that Ibero was as- serting that Schmidt was without authority to grant rec- ognition. Young's testimony on this point is vague and, as noted above, if found inconsistent with that of Attor- ney Fink, Fink's testimony is credited as being the more accurate. On or about February 2, Young received a call from Fink wherein Fink represented himself as Ibero's attorney. Fink had represented Ibero in 1984-1985 and 1987 with respect to matters involving the Union, and Young and Benson were aware of this fact During this call, Fink clearly had no knowledge of any recognition and was calling to seek an adjournment of the February 5 hearing or a stipulation that would lead to an election. On February 3 or 4, Fink informed Young that Schmidt's action was unauthorized and it was the inten- tion of Ibero to go forward to an election. Norbert Benson's testimony supports that of Fink as the following transcript passage demonstrates- Q. (of Benson) Now, did there come a time when you were informed that Ibero was taking the posi- tion that Mr. Schmidt wasn't authorized to send General Counsels-to sign and give you General Counsel's Exhibit 3 (recognition letter)9 A. Was there a time when I became aware when the Board of Ibero was- Q Did there come a time after January 28th, when someone told you that there was an issue of Mr. Schmidt's authority to sign what is marked as General Counsel's Exhibit 3? A. That came about right about the time that- when you [attorney Fink] called Ed Young. The record does not indicate that there were any con- versations between Ed Young and Fink after February 4. Thus, by February 4, and prior to Young's withdrawal of the Union's petition from the NLRB, the Union was aware that it was Ibero's position that Schmidt was not authorized to give a letter of recognition. Young was in- formed that Ibero was willing to proceed on the same basis as it had in 1984 to enter into a stipulation so that there could be a quick election. On February 4, Young had clear choices before him. He could have (1) entered into a stipulation quickly; (2) gone to the hearing on 806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD February 5 and had the NLRB representative determine what was the appropriate unit; (3) acted as he did by re- fusing to accept Ibero's offer of a quick election, with- draw the petition, and rely on a letter of recognition which he knew was being challenged as unauthorized by Ibero C. Did Schmidt Have Actual Authority to Recognize the Union? Both the General Counsel and Respondent agree that the central question in this proceeding is whether James Schmidt had actual or apparent authority to recognize the Union For the reasons set forth below, I find that he had neither and his act was a nullity, not constituting recognition or giving rise to a bargaining obligation on the part of Ibero. In November 1987, the Union requested recognition from Ibero. Ibero refused to give recognition on the grounds that any interest that the employees had in the Union was based on the initiation of Ibero's managerial employees. This proved to be correct and the Union elected to withdraw its petition in mid-December 1987 In mid-January 1988, the Union elected not to seek rec- ognition through its normal process of sending out a letter requesting recognition. Instead, it chose to proceed to an election by filing a petition on January 14. The Re- gional Director commenced the process to determine whether an election was appropriate by sending a re- quest for information on January 15. Respondent con- tends that its ability to act to recognize the Union or to take other significant actions is governed by New York State law and its bylaws. Section 701 of the New York State Not-For-Profit Corporation Law reads as follows: Section 701 Board of Directors (a) Except as otherwise provided in the Certificate of Incorporation, a corporation shall be managed by its board of directors. New York case law cited by Respondent indicates that this section creates an obligation that cannot be circum- vented, and that the business of a corporation, including the position of an answer to a lawsuit against the corpo- ration, is exclusively within the province of the board of directors Section 708 of the Not-For-Profit Law of New York sets forth, that unless it is provided otherwise, that a ma- jority vote of the directors is required for board action. Also, corporate action is defined as action taken by the board of directors at a meeting of the board. Section 711 of the law requires that notice be given of board meet- ings, unless the time and place is fixed in the bylaws. Section 713 of the law sets forth that officers may be elected as provided in the bylaws and shall have such powers as are set forth in the bylaws. New York State law requires that the board of direc- tors act, pursuant to votes at meeting as prescribed under the law, and that the power of the board does not take place when a director acts individually.5 A review of the certificate of incorporation indicates no restriction on the powers of the board of Ibero A review of the bylaws of the organization specifically sets forth in article III, section 1, "Management of the Cor- poration. The corporation shall be managed by its board of directors." Section 12 sets forth that: "Actions of the board of directors means action at a properly convened meeting of the board, except as otherwise provided by law or in these By-Laws. Meetings of the board of direc- tors are set forth under Article IV, which indicates in Section 2 that an agenda of the meeting shall be commu- nicated to each member at least seven days in advance of the date of the meeting." The duties of the president are spelled out in article V, section 6, and generally are confined to running meet- ings, acting as an ex officio member of committees, making certain appointments to committees, making public statements in the name of the board after having obtained approval, and signing other leases and contracts on behalf of the corporation. The executive director is designated in article VII as the chief executive officer of the corporation The practice of the board was not to expand the duties of the president but to restrict the president's duties to act for the board after the policy was set by the board. I agree with Respondent's contention that the issue of au- thorization of a corporate body or officer is to be inter- preted under New York State law, at least as far as the question of actual authority is concerned. Under New York law cited, I conclude that neither an individual board member, the executive director, nor an officer, in- cluding the president, was authorized to act for Ibero without specific authorization from the board of direc- tors at a legally called meeting. It is clear from the evidence that in all the history of the Union and Ibero, that prior to January 21, Ibero's board of directors never at any time considered recog- nizing the Union, absent an election. It is also clear that subsequent to January 21, the board of directors of Ibero never met to consider whether it should recognize the Union other than at a meeting held on February 10 At no other meeting other than the January 21 meeting was there any issue raised concerning the authorization of anyone to act on behalf of Ibero relating to the Union. I have reviewed the transcript of the meeting of Janu- ary 21 and listened to the tape of that portion of the meeting in question. Independently, I can only find that the board authorized Schmidt to fill out the initial papers sent to Ibero by the NLRB and nothing more It was even contemplated that the Board would seek the serv- ices of an attorney at the proper time. The recollections of board members in attendance at the meeting who testified in the instant proceeding are unanimous in that the board did not authorize Schmidt or anyone else to recognize the Union. It should be noted that this is a not-for-profit corporation where the 5 Spanos v Boschen, 61 AD2d 837 (2d Dept 1978), Beverage v New York Elevator Railroad Co, 112 NY 1 (1889), Simons v Civil Service Em- ployees Assn , 133 Misc 2d (Sup Ct Albany County 1986) IBERO-AMERICAN ACTION LEAGUE individuals are not on the board for any remuneration or any personal profit. The board members come from all walks of life and are dedicated to the service of the His- panic community. Jose Rivera, in fact, testified that he had been a loyal member of a union and a shop steward. Previously, he had worked with Ed Young to encourage employees at Ibero to vote for the Union. However, he, like other board members, recalled that the only issue before the board was to designate Schmidt to "fill out papers." As Rivera testified, "The whole concept was for him to fill out these papers." Rivera assumed that after the papers were filled out, they would be returned to the president for signature. Hernandez recalled that the motion was made for Schmidt to fill out papers. Her- nandez recalled no discussion about whether Ibero should fight or support the Union, but only that Schmidt was authorized to fill out papers. This was also the view of Jose Cruz and the president, Alomar-Hamza. Schmidt testified that his understanding of the board's resolution was to assist the chairwoman in the process of the Union. He considered it unclear "exactly what the charge was is that I was to assist her." I do not find that the charge is unclear. Like the board members who testi- fied, I believe that he was given the task of filling out the papers the board had received on January 15 from the NLRB, and nothing more Clearly, Schmidt did not believe he had been authorized to recognize the Union at this meeting or he would have so notified the union rep- resentative and the NLRB agent when they initially con- tacted him . Instead, as will be discussed more fully, he disclaimed any representative capacity and indicated he did not know what Ibero was going to do with respect to the union issue. I therefore find and conclude that Schmidt had no actual authorization from Ibero's board of directors to recognize the Union Under the New York law cited and the Respondent's bylaws, I do not believe the president could have given Schmidt this authorization without fur- ther formal board action. However, in light of my credi- bility findings, the point is moot. I have heretofore found that Alomar-Hamza did not personally authorize Schmidt to recognize the Union. There is no contention that the interim director, Luisa Baars, authorized the rec- ognition, and in any event, I believe that she would have been equally powerless to do so without specific board authorization In conclusion on this point , I find that Schmidt gave the Union the purported recognition letter on his own for his own reasons and without any actual, legal author- ity to do so. D. Did Schmidt Possess Apparent Authority to Recognize the Union? The General Counsel contends that Section 2(13) of the Act specifically provides that " [i]n determining whether any person is acting as an `agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts per- formed were actually authorized or subsequently ratified shall not be controlling " He cites the common law agency concept of apparent authority which has been adopted by the NLRB , "If the principal places an agent 807 in such a situation that a person of ordinary prudence and discretion is justified in assuming that an agent is au- thorized to perform in behalf of his principal, the par- ticular act in question , and such an act is performed, the principal is bound by what his agent did. 116 The General Counsel also cites Broad Street Hospital, 182 NLRB 302 (1970), in which the Board adopted an administrative law judge's decision finding that the agent, a partner, and one of two top officials of the em- ployer, had acted within the scope of his authority in recognizing and bargaining with a union The employer in that case argued that the agent's acts in recognizing and bargaining with the union were not authorized. Rather, the employer claimed that the agent was only authorized to embark on an exploratory "fact finding mission" for the purpose of finding out "what the unions" had to offer. The administrative law judge, in finding actual authorization of the employer agent to rec- ognize and bargain with the union , noted that the agent was a high-ranking employer official and was represent- ed by the employer's attorneys in connection with the union recognition and that another employer partner par- ticipated with the agent in preliminary negotiations with the union . Under the circumstances , the judge found not only was the employer agent actually authorized to rec- ognize the union, but that the employer cloaked the agent with apparent authority to deal with the union and the union believed and had good reason to believe that the agent possessed the authority he exercised. The General Counsel argues that under the standards set forth above, Respondent placed its agent, James Schmidt, "in such a situation" that the Union , in the ex- ercise "of ordinary prudence and discretion" was justi- fied in assuming that Schmidt was authorized to recog- nize the Union I very seriously disagree and believe that the Union had good reason to question Schmidt's author- ity First, contrary to the situation in Broad Street Hospital, Schmidt had no actual authority to recognize the Union. He did not meet with the Union assisted by other' offi- cials of Ibero nor was he assisted by Ibero's attorney. From the first contact with the Union, Schmidt dis- claimed any independent authority to represent Ibero. In describing himself, Schmidt limited himself to indicating that he was a "contact person." He specifically denied that he was a representative and indicated he was acting on behalf of the president. Young testified that based on his experience with Ibero, he knew that all important de- cisions had to go through the executive director . In des- ignating the employer representative in January, Young, knowing that there was no executive director, designated the president, Alomar-Hamza. At no time did Schmidt file a notice of appearance. The only notice of appear- ance was filed in the withdrawn unfair labor practice case by Attorney Fink. The NLRB continued to send correspondence to the employer representative, Alomar- Hamza 6 Citing Westward Ho Hotel, 251 NLRB 1199 (1980), citing Ferro Con- crete Construction Co v US , 112 F 2d 488 (1st Cir 1940) 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD At the January 28 meeting where Schmidt signed the purported recognition letter, Schmidt testified that he did not recall whether the Union made any inquiry as to his authority to act on behalf of Ibero with respect to recog- nition. On this point, Schmidt testified: "I don't recall. I don't think the issue came up. I may have talked with him about my conversation with the Chairwoman be- cause he had called me prior to that asking what the status was because of the Friday NLRB meeting. And I said I would check with the Chairperson and get back to him. So I may have communicated that I talked to the Chairperson, Mrs. Alomar-Hamza on this." Both Young and Benson gave more elaborate and in some respects illogical accounts of Schmidt's assertion of authority. Both recalled him saying that one of the rea- sons that Ibero was recognizing the Union was because it spent $20,000 in the last organizing effort and did not have the money this time. At least both Schmidt and Young knew that the money was spent in bargaining over the initial contract which the employees never rati- fied. Virtually no money was spent with respect to the representational process as the Respondent did not oppose the Union's organizational efforts. Young claimed that Schmidt said that the Board was aware of the apparent, later changed to overwhelming, majority support for the Union among Ibero's employ- ees. Benson also recalled this statement. Schmidt did not testify that he made any such statement and in fact, had no way of knowing whether the Union represented a majority or not, other than Young's representations to that effect. He had not spoken to the employees and did not look at the authorization cards. I have serious doubt that such a statement was ever made. Both Young and Benson expressed surprise at how Schmidt proposed to sign the purported recognition letter. Young testified that Schmidt said he was going to use the title "Director" because the president had desig- nated him to handle all the affairs of the Union. Benson testified that when it came to putting down his name, "he said to put it down as Director of Ibero and that kind of surprised me because I knew that they didn't have a Director at that time, Mario Caceres had already been let go and I said, `Director' and he said well, the Board authorized me to act as the Director in the matter of the affairs of the union, what was going to happen with the union." Not only did both union representatives present hear different reasons for the manner in which Schmidt signed the letter, but at least Young had heard Schmidt only days before disclaim any representational authority. If as Young claimed, Schmidt was acting for the president, then surely her signature would have been the proper one to be on the letter. Both Young and Benson testified that it was unusual for an employer to voluntarily recognize the Union. It had happened with a frequency of only about once per year. In its prior dealings with Ibero, including a request for recognition made only 2 months before the Respond- ent had refused to grant recognition. Yet, suddenly, Schmidt appears offering to grant recognition, and is no longer just a contact person but can accomplish this un- usual act on his own. He has no written authorization ac- knowledging a change in his status, and no one in higher authority at Ibero has acknowledged even orally to the Union that his capacity has changed. I do not think that blindly accepting Schmidt's authority to recognize was, under the circumstances, the, exercise of "ordinary pru- dence and discretion." Rather, it falls more in the catego- ry of not looking a gift horse in the mouth. As noted by Respondent, it is interesting that when the Union attempted to contact Ibero after January 28, its communications were always sent to the executive di- rector. The Union, through Young, knew that Ibero had always functioned through an attorney, both in the 1984- 1986 representation procedures and in the 1987 unfair labor practice procedure. In conclusion on this point, I find that Ibero had not clothed Schmidt with apparent authority to recognize the Union and, further, that the Union should have either investigated Schmidt's author- ity before accepting the letter or after its receipt. In either event, it would have found immediately that Schmidt was without authority. As it turned out, only a week passed before the lack of authority was clearly made known to the Union. It was apparent by February 2, after the call from Attorney Fink, that a problem existed.,By February 4, and before any detrimental action had been taken by the Union, it was clear from Fink's second call that Schmidt's action was unauthorized and that Ibero intended to proceed to an election. Contrary to the General Counsel's assertions, Fink did not need authorization from the Board to state this position to the Union. Fink had represented Ibero in its dealings with the Union in the past. He was not tell- ing the Union that the Board was taking some new action, he was stating only that Schmidt's action was contrary to the Board's prior action and was without au- thority. Obviously the Union believed that Fink spoke for Ibero as it did not seek to check with Schmidt for clarification. Reliance on the Schmidt letter after that date was clearly fraught with risk and cannot be blamed on Ibero. As of February 4, I cannot find that the Union had done anything detrimental to its interest in reliance upon the letter. Although the General Counsel and the Union would have one find that is not until March 2 that it became clear that Ibero was disclaiming the purported letter of recognition, this position is clearly wrong. Fink told Young as of February 4, and told the Union's attor- ney prior to February 10• that that was the position of Ibero. Yet even by March 2, there was no detriment to the Union. Ibero, in its letter of March 2, offered to accept a petition, without objection, based upon the cards that had been previously filed and to agree to a quick stipulation on the unit, permitting the NLRB to authorize an immediate election. The evidence clearly in- dicates that at all times Ibero acted in good faith and without any antiunion animus. Ibero had a- record in the past of generally cooperating with the Union, except for the one instance when it correctly felt that the Union was not acting properly in working with its management employees. The only delay occurred when Ibero, in a period of transition , was attempting to determine what had occurred so that it could properly react in a manner IBERO-AMERICAN ACTION LEAGUE that was consistent with both the law and the events that had transpired. I find that any action taken by the Union after Febru- ary 4 which it considers detrimental to its interest was taken with knowledge of the risks involved and cannot be relied upon to bolster its position that the letter of January 28 constitutes a valid recognition. In conclusion, I find that the Respondent did not validly recognize the Union on January 28, 1988, as alleged in the complaint and that its subsequent demand for an election does not constitute a violation of the Act. In the trial of this case, it became clear that Ibero sin- cerely wants its employees to do whatever they desire with respect to a union. Both the president and the exec- utive director have been asked by employees for the right to be able to choose for themselves whether or not they want the representation of a union. I believe that this is one of the ultimate purposes of the Act and that it will best suit the interests of the employees to allow them to select for themselves in the matter of representa- tion. The Respondent has not been shown to harbor any antiunion animus or to have waged any form of cam- paign either for or against the Union. Therefore, even though I will recommend dismissal of the complaint in this proceeding, I will affirmatively recommend that upon the request of the Union, the Regional Director re- instate its petition for representation and proceed 809 promptly to an election. It is expected that Ibero will abide by its promises to cooperate in this regard. CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in any of the unfair labor practices alleged in the complaint. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed7 ORDER 1. The complaint is dismissed in its entirety. 2. Upon the request of the Union, the Regional Direc- tor shall reinstate its petition and proceed to an election to determine if an appropriate unit of Respondent's em- ployees desire the Union to be their exclusive representa- tive for purposes of collective bargaining. If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses